Exihbit different from annexure to plaint
anupam sharma
(Querist) 25 August 2014
This query is : Resolved
That the plaintiff while filing the suit has attached a photo copy of WILL purportedly executed by deceased as Annexure P-1 with the plaint. Now while Exhibiting the documents to prove his pleading regarding the execution of WILL the plaintiff has placed on record the original WILL as Exhibit P2. A bare perusal of these two documents Annexure P-1 and Exhibit P2 reveals that these two documents are not the one and same but are two different documents. Exhibit P2 is not the original of Annexure P-1 as the signature of witnesses are different on Annexure P-1 and Exhibit P-2.
That the Plaintiff has placed on file two different WILLs/documents pertaining to WILL dated 29.06.2008 as Annexure P-1 and Exhibit P2. Thus, Annexure P-1 and Exhibit P2 which should have been same are different documents in nature. Now, the question arises that the actual will is primary evidence then would both annexure P-1 and Exhibit P-2 be deemed as secondary evidence when only one will is annexed with plaint (though now the plaintiff claims that there were two copies of original wills whereas nothing about two copies is mentioned in either plaint or evidence or cross examination?? Does Section 340 Crpc Apply here?
What should defendant do about it??
R.K Nanda
(Expert) 25 August 2014
Section 340 Crpc donot Apply here.
defendant now pray to court to direct plaintiff to file original will dt.29/6/8.
Rajendra K Goyal
(Expert) 25 August 2014
You can raise this point in your defense. Cr PC 340 not applicable.
340. Procedure in cases mentioned in section 195.
(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused before such Magistrate, or
if the alleged offence is non-bailable and the Court thinks it necessary so to do send the
accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,—
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195.
Section 195:
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence –
(1) No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian
Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, except on the complaint in
writing of the public servant concerned or of some other public servant to whom he is
administratively subordinate;
(b) (i) of any offence punishable under any of the following section of the Indian Penal
Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate
(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance
has been concluded
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction
shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or
